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Archive for December, 2008

Will Warner Bros. Delay the Release of “Watchmen”?

Tuesday, December 30th, 2008

WatchmenWarner Bros. is set to release the film “Watchmen” on March 6, 2009 despite a recent district court decision that ruled in favor of Twentieth Century Fox (Fox) having intellectual property rights in the film.  Fox acquired the rights to the popular but dark-themed graphic novel “Watchmen” in 1986.  Fox then conveyed those rights to a company controlled by Lawrence Gordon, the films producer, but maintained the right to distribute the first film based on the novel.  http://www.reuters.com/article/industryNews/idUSTRE4BT1P720081230

Fox has sought an injunction against Warner to prevent the release of the film, however a judge is set to issue a decision on the matter on January 20th where he will also consider whether Warner has to pay any damages to Fox if they release the film.

Under 17 U.S.C 103 of U.S. copyright law, the owner of a copyright has the right to reproduce and make derivative works of an original work.  In this case Fox owned a copyright to make the first film based off of the Watchmen graphic novel.  The film is a derivative work and therefore Fox should be entitled to damages.  An injunction is unlikely as Warner Bros. already has invested $120 Million in creating the film.  A delay in release would provide no benefits to either party as no money would be earned from the project.  I would expect the parties to reach a settlement decision before the January 20th ruling.  If no settlement is reached Fox will most likely be entitled to share in the profits from the film as a damages award.

Here is a link to the Watchman movie trailer:   http://www.youtube.com/watch?v=E4blSrZvPhU

UPDATE – Warner Bros. and Fox have settled their dispute – http://www.law.com/jsp/article.jsp?id=1202427549210&rss=newswire

 

When College Basketball Coaches Attack

Saturday, December 20th, 2008
Andy Kennedy

Andy Kennedy

Many basketball coaches have fiery personalities so that they can get the most out of their players but last week in Cincinnati, Mississippi men’s basketball coach Andy Kennedy took his coaching style to the back seat of a cab where he was arrested after he allegedly struck a cab driver with a closed fist and berated the cab driver with racial slurs.  Kennedy was charged with misdemeanor assault.  http://sports.espn.go.com/ncb/news/story?id=3783491; http://sports.espn.go.com/ncb/news/story?id=3777703

My question is why was Kennedy charged with a misdemeanor assault claim instead of a battery claim?  In order to prove criminal battery a plaintiff must prove application of force to another person resulting in bodily injury or offensive touching; whereas assault requires an (1) attempt to commit battery and intentional creation of reasonable apprehension in another person of imminent bodily harm.  Since Jiddou was struck in the face by Kennedy’s fist it would seem that a battery claim would fit best since Jiddou suffered a swollen face.  Kennedy may try to argue that he was intoxicated and therefore could not form intent.  However this defense would fail since assault and battery are general intent crimes and don’t require intent.  The racial slurs, whether uttered or not will have no effect on the outcome of this case unless they caused intentional infliction of emotional distress which is not likely here.   

Kennedy will also argue that Jiddou is not telling the truth about his allegations.  In fact Kennedy has filed a defamation claim against Jiddou and a witness, Michael Strother. Kennedy argues that the accusations of Jiddou and Strother have ruined his reputation and therefore he is entitled to $25,000.  In order for Kennedy to win on the defamation suit he will have to prove that a (1) defamatory statement (2) of or concerning Kennedy was (3) publicized to a 3rd party and (4) damage to the reputation of Kennedy occurred.  Additionally since Kennedy is a public figure he must also prove that the statements were false and that the defendants had actual malice or intended to make false statements.  In this case Kennedy cannot prove what the defendants are saying is false.  Therefore he will lose on any defamation claim unless he can come up with convincing evidence of the false statements. 

Kennedy should take responsibility for his actions and drop his suit if the allegations are true.  As a role model to his players and his university he should not have been out late at night, possibly intoxicated in the first place.  Kennedy is lucky to keep his job and he needs to move on and not drag out a bad situation.  Hopefully Kennedy and other coaches will learn a lesson from this and not let it happen again in the future.  However if one thing is certain it’s that scandals and allegations will never go away in high profile sports.         

Update 4/20/08 – Kennedy pleaded guilty to a reduced for of disorderly conduct and received 6 months probation and 40 hours of community service.   http://sports.espn.go.com/ncb/news/story?id=4083219

 

Is a College Football Playoff Foreseeable in the Near Future?

Sunday, December 14th, 2008
Joe Barton

Joe Barton

Last week Texas Congressman Joe Barton introduced a bill that would pave the way for a college football playoff it were to be approved.   http://sports.espn.go.com/ncf/news/story?id=3760232

In order for the bill to become law it must be approved by the house and senate and then be approved by the President.  Here is a detailed description of the entire process.    http://clerkkids.house.gov/laws/.  Currently the bill does not include details about the playoff system.  These details will be left up to law makers on committees if the house determines that the bill should move forward.  The big question will be whether lawmakers feel that it is their duty to impose rules on the NCAA and College Football or whether they should allow College Football to set their own rules as they see fit.

At this point in the process the bill is a long ways away from becoming law as both the supporters and opposition to the bill have valid arguments.  Supporters of the BCS bowl system, the opposition of the new bill,  have cited that the current bowl system generates significant revenues and that a playoff system would put the historic bowl games in jeopardy.  The supporters of the bill argue that a college football playoff  system could incorporate the current bowl games, would end up generating even more revenues than the current system and would allow for teams from smaller non BCS conferences to have a legitimate chance at winning the national championship.

There is reason to believe that some sort of bill will be passed within the next 4 years as President-elect Barack Obama has been quoted as saying that he supports a college football playoff system.  Therefore it is likely that if a bill gets approved by the house and congress that the President would sign such a bill into law.

 

Does Joe Satriani Have a Copyright Infringement Claim against Coldplay?

Tuesday, December 9th, 2008
Coldplay

Coldplay

Joe Satriani

Joe Satriani

Guitarist Joe Satriani brought a plagiarism suit last week in Los Angeles against the band Coldplay for allegedly plagiarizing his song “If I Could Fly.”   Satriani claims that Coldplay used the same melody progression in their song “Viva La Vida.”‘  http://www.mtv.com/news/articles/1600890/20081208/coldplay.jhtml

The songs can be heard together here:  http://www.youtube.com/watch?v=1ofFw9DKu_I  So do you think the songs are the same?

Proving a plagiarism claim in music is extremely difficult, therefore Satriani will face an uphill battle.  Satriani as the plaintiff has the burden of proof to show that copyright infringement occurred.  In order to prove copyright infringement a plaintiff must show (1) that he owned a valid copyright to the song and that (2) copying of the song occured.

Under the first element Satriani will be able to show that he owned a valid copyright in his song “If I could Fly.”  A copyright is established the moment the work has been completed and I am assuming that he also registered the copyright with the federal government, gaining more protection and the ability to sue in Federal Court.  Therefore Satriani owns the reproduction rights as well as the rights to prepare derivative works.

The second element, copying, will be harder to prove.  In order to prove copying Satriani must show (1) access as well as (2) substantial similarity.  In order to prove access the plaintiff can show either that there is a particular chain of events between plaintiffs work and defendants access to that work or that the plaintiffs work has been widely disseminated.  In this case Satriani’s song has been widely disseminated through mass distribution and radio play.  Therefore this element would be met.

Next Satriani would have to prove that there is a substantial similarity between the two songs.  This is done through extrinsic and intrinsic tests.  An extrinsic test would prove concrete elements such as similar notes and lyrics which is done through expert testimony.  An intrinsic test looks at whether an average person would find the total concepts of the works to be substantially similar.  This can be done through surveys and polls of average people.  If there is a high degree of access shown then there is a lower standard for substantial similarity.  In this case it is very likely that Coldplay had access to the Satriani song. The outcome  will come down to expert testimony and the views of the general public to determine if copying occurred.   So I ask again, do you think, there is copying involved?    If yes then it is likely that Satriani will win his case as the courts ruled in Newton v. Diamond (2002) that a musical note sequence of 6 or more notes was copyrightable.

Coldplay will counter these allegations and state that their song was an independent creation, wherebye the group independently came up with the song on their own.  This would be hard to prove because they would have to show that they had never heard the Satriani song, which has been widely distributed.  If Coldplay tries to argue fair use, that would fail because they are using the song for profit and allegedly copied significant amounts of the Satriani song.

It will be interesting how this case turns out.  I would venture to guess that the parties will settle their dispute due to the fact that an average person would probably find that there is a similarity, the same melody and notes were most likely used, and it would be easy to prove that Coldplay had access to the Satriani song.

 

Was Challenging the Suspensions of 5 NFL Players a Smart Thing to Do?

Friday, December 5th, 2008
Kevin Williams

Kevin Williams

Earlier this week Minnesota Vikings defensive linemen Kevin and Pat Williams along with three members of the New Orleans Saints were suspended for four games each for testing positive for bumetinide, a diuretic banned by the NFL, contained in the supplement Starcaps.  Starcaps did not list the diuretic in it’s ingredients and the players claim they did not know they were ingesting bumetinide, which can be used to mask steroids.  The players with the help of the NFL Players Association challenged the suspensions in court and argued that the NFL did not properly inform players about the banned substance.  The NFL argues that the NFL collective bargaining agreement prevents any action by the players suspended and the NFL had no duty to warn players not to ingest a particular supplement, only that the particular diuretic should not be ingested.

Today a federal judge in Minnesota prevented the NFL from suspending  the players so that he could analyze the legality of the suspensions.  The judge granted temporary restraining orders that will allow the players to participate in this weeks upcoming NFL games.    The judge is expected to give a final ruling as to whether the suspensions are legal sometime next week after analyzing the arguments of both sides.   The full article can be found here:  http://sports.espn.go.com/nfl/news/story?id=3747957

It is always a good thing to be an advocate for players rights, however delaying the suspensions could cause the players to miss valuable playoff games that could cost their teams their seasons and a chance at the Super Bowl if the court ruling drags on much longer.  If the judge rules that the suspensions should be enforced, the four game suspension will be served immediately and the players would miss the next week of play after the rulings.  If the players had a good argument then it would make sense to challenge the ruling, however in this case the NFL collective bargaining agreement clearly states that players are responsible for what they put in their body, and here, they ingested a banned substance contained in a weight loss supplement.   The moral of the story is, an NFL athlete must always know all the ingredients of everything that they are ingesting, whether the ingredients are listed on the label or not.   Lets just hope that no playoff games are missed because of this challenge.

 

Is Online Gambling Safe?

Tuesday, December 2nd, 2008

absolute-poker

ultimate-bet

CBS’s 60 Minutes recently ran a story about the $18 Billion a year online gaming industry and its lack of regulation in the U.S. due to most companies keeping their Internet servers off shore, outside of U.S. jurisdiction.  60% of gambling online servers are kept on the Mohawk Indian Tribe Reservation which is located in Canada, but is not considered a part of the country.  This means that the Mohawk tribe does not abide by Canadian law, which does not allow online gambling.

It should be noted that the 60 minutes story reports that online gambling is illegal which is not true.  Online gambling is not regulated for the most part in the U.S. by federal law, however U.S. banks are now restricted from financial involvement.

The show profiles the story of the biggest scandal in online poker history.  In this scandal former employees of Absolute Poker and Ultimate Bet (some professional poker players) hacked the computer systems, which allowed the employees to view opposing players cards.  The scam cheated opposing players out of potentially $20 Million and went on for 4 years.   Those cheated out of money could not recoup their money unless they could get jurisdiction over the companies through Mohawk Indian Law.  The tribe’s gaming comission ordered that the losses be repaid to those cheated, however Absolute Poker and Ultimate Bet remain in business.

The Story can be found here:  http://www.cbsnews.com/video/watch/?id=4639016n

Since onlince gaming is currently unregulated those responsible for the cheating have not been criminally prosecuted.  There are several websites around that provide online gaming services and there is at the moment no way to tell if there is any cheating going on.  If cheaters don’t get greedy and make themselves obvious they will be hard to spot.  Regulation of the online gaming industry needs to happen in order to prevent more cheaters.  If there was a law in the U.S. regarding online gaming, a cheater could be prosecuted if they ever stepped foot in the U.S, giving U.S. courts jurisdiction.

I think I will stick to gambling the old fashioned way where there are rules in place to prevent cheating.  Even if I lose my money, at least I won’t be cheated.

 

Plaxico Burress Shoots Himself in the Leg; Will do Some Hard Time

Monday, December 1st, 2008
Plaxico Burress

Plaxico Burress

If you haven’t heard New York Giants star WR Plaxico Burress accidentally shot himself in the leg over the weekend while at a nightclub in New York and is being charged with two counts of  Criminal Possession of a weapon in the 2nd degree, a class C Felony.  Burress faces between 3.5 and 15 years in prison and is expected to plead not Guilty on March 31, when he is set to appear in court.   http://sports.espn.go.com/nfl/news/story?id=3736356

SI.com’s Michael McCann did a great job in breaking down all of the common questions one may have about the Burress situation from a legal prospective which can be viewed at:  http://sportsillustrated.cnn.com/2008/writers/michael_mccann/12/01/plaxico.burress/index.html

In order to be found guilty, Burress must have used his own gun in the shooting or must have had the gun with him in New York.  It looks like Burress’s only defense will be that the gun he shot himself with does not belong to him and was not present in New York.  If it can be proven through witness’s or camera footage that the gun did belong to Burress, then he will be found guilty because New York’s law states that the mere possession of a an unlicensed weapon is enough to be found guilty of second degree criminal possession of a weapon.  It does not matter that Burress did not intend to use the gun.  However I would look for a plea bargain to be entered into before this case goes to trial. Burress is a first time offender and may be eligible for a reduced sentence.

The NFL and the New York Giants will also have to decide what to do with Burress who may have violated the NFL Handgun Policy which can be found here:  http://sports.espn.go.com/nfl/news/story?id=3378990 Burress will be found to have violated the policy only if he is convicted on the criminal possession charges since he did not have a gun at any NFL sponsored function.  NFL player contracts may be terminated at will, and usually guaranteed money must be paid.  However if it is found that Burress committed conduct detrimental to the NFL or the New York Giants he could lose money that was guaranteed to him in the contract which runs through 2012.  This language is present in every NFL standard player agreement and it would be up to the Giants whether they want to pay Burress anything or not.

It is sad to see another athlete make such a bad lapse in judgement.  Often times it is up to the people around a player such as agents and advisers to warn an athlete of potential risks.  There is no doubt that athletes are targets when it comes to crime and may need to protect themselves and their families, however there are smart ways to do it.  Burress, has a 35M contract and can can afford to hire private security whenever he goes out in public so that he is not the person holding a gun and getting in trouble with the law.  Imagine if he accidentally shot somebody?  He would be facing murder charges instead of criminal possession of a weapon charges.  He has no excuse and according to New York Mayor Michael Bloomberg, Burress will be prosecuted to the full extent of the law.  May this be a lesson to all athletes and advisers out there that athletes need to be smart, abide by the law, and surround themselves with a network of professionals who can dispense invaluable advice.

UPDATE 8/20/09 – Burress pleads guilty and will serve 2 years:  http://sports.espn.go.com/nfl/news/story?id=4411373&campaign=rss&source=ESPNHeadlines

 

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